New Session, New Rules — Part 2

By Miryam Ehrlich Williamson

On Wednesday, when the Senate convenes for its first session of the 112th Congress, Democrats intend to modify two rules that have allowed a small minority to virtually paralyze the chamber for the past two years. The two rules are not new; what’s new is the attitude of the Republican caucus. The Senate used to be the more civil of the two houses of Congress. The 111th session changed that, making it clear that as far as the Republican minority was concerned, bipartisanship meant doing it their way. Most of the two-year session was characterized by hardening of the legislative arteries. A single senator, perverting existing Senate rules in a manner never intended by those who wrote them 36 years ago, could turn himself into a clot that blocked the body’s action entirely.

Specifically, the Senate rules that have been used to paralyze the legislative body allow a Senator to block action by placing an anonymous “hold” on it. Thus, the Senate has failed to address 175 presidential nominations, despite the Constitutional requirement that the chamber “advise and consent” on each of them. Akin to the “hold” is the filibuster, a procedural delay originally intended to give the minority a full hearing in debate but corrupted into the way the minority thwarts debate entirely.

When the Senate convenes on Wednesday, Sen. Tom Udall (D-NM) will rise to move that the Senate adopt its rules by majority vote. Some will argue that because only one-third of its members are newly elected, the other two-thirds continuing from the previous session, the Senate is an ongoing body and its rules may not be changed without a two-thirds vote of the chamber.

They will be wrong. Several aspects of Senate procedure argue against that position. For one thing, bills filed but not enacted in the previous session must be reintroduced (or not) and re-heard by their relevant committees (or not) in order to be considered. For another, the legislature that convenes Wednesday is the 112th Congress, not a continuation of the 111th.

Then there’s this provision, in Article I Section 5 of the Constitution:

Each House may determine the rules of its proceedings.

If the framers meant for the Senate to set its rules once for all time, surely they would have said so, applying I:5 to the House of Representatives alone.

The decision will be Vice President Joe Biden’s to make. He will have guidance from all of the returning Democrats, in the form of a letter supporting changes in the filibuster and anonymous hold rules. He will also have guidance from a former Vice President, one Richard Nixon — a Republican, if memory serves — who presided over the Senate in 1957 when rules changes were proposed. A Senator asked what rules the body was operating under while voted on the new rules. Nixon said, in part:

The constitutional provision under which only one-third of the Senate membership is changed by election in each Congress can only be construed to indicate the intent of the framers that the Senate should be a continuing parliamentary body for at least some purposes. By practice for 167 years the rules of the Senate have been continued from one Congress to another.

The Constitution also provides that “each House may determine the rules of its proceedings.” This constitutional right is lodged in the membership of the Senate and it may be exercised by a majority of the Senate at any time. When the membership of the Senate changes, as it does upon the election of each Congress, it is the Chair’s opinion that there can be no question that the majority of the new existing membership of the Senate, under the Constitution, have the power to determine the rules under which the Senate will proceed.

Udall’s motion will be preparatory to introducing some recommended changes to the rules: Probably an end to the anonymous hold, so that an individual wishing to obstruct advice and consent on appointments, for example, may be called to account by his or her constituents; and the likely requirement that someone wanting to filibuster a bill must actually talk, not just file a paper announcing a filibuster. There is talk about requiring a certain number of filibuster supporters be on the Senate floor at all times during the filibuster.

Provisions of the proposal are vague because Udall turned his request over the Majority Leader Harry Reid, who seems to have gone into hiding with Minority Leader Mitch McConnell to talk things over. The silence from those two, and from any others who know what kind of proposal may emerge from that parley is deafening.

I cannot conceive of Biden refusing to allow a majority vote on whatever changes are to be made. Unfortunately, I can conceive of Reid giving away the store and bringing to the floor rules changes that fall far short of the mark. You can bet I’ll be watching C-SPAN when the Senate convenes at noon.